It was a mighty glum Mortimer Groenteboer of the American Fruit and Vegetable Council who came to visit my office on the afternoon of Friday March 30. “He looks,” Gretchen opined in an instant message shortly before showing him in, “like he was weaned on a pickle.”
And so he did. A more unhappy Washington lobbyist I have yet to see. “Why broccoli,” he sighed as he threw himself down on the couch by the picture window, “of all things, why broccoli?”
“It probably got started,” I hypothesized, “when George W. Bush said, ‘I do not like broccoli, and I haven’t liked it since I was a little kid and my mother made me eat it. And now that I’m President, I’m not going to eat any more broccoli.’ It’s like he had to be elected President of the United States before he had the courage to stand up to old Barbara Bush.”
“Oh, Christ,” Groenteboer groaned, “Don’t remind me! Why did he have to wait until he was President? Why couldn’t he have said that when he was governor of Texas?”
“Apparently,” I speculated, “being governor of Texas wasn’t enough.”
“Holy hen [expletive],” he moaned. “In that case, I can only say, what a formidable battle-axe Barbara Bush must have been, because her little boy’s hissy-fit about broccoli turned out to be a total nightmare for the American Fruit and Vegetable Council. Sales plummeted nationwide, and we had to spend months doing damage control.”
“It’s a good thing,” I commented, “most people don’t realize that broccoli, cauliflower, Brussel sprouts, kale, savoy, Chinese kai-lan, collard greens, bimi, rabe, cabbage and kohlrabi are all actually the same plant – various cultivars of Brassica oleracea.”
“It’s a damn good thing,” he concurred, “otherwise the entire national green grocer market might have collapsed – not to mention commercially prepared cole slaw and sauerkraut, too, for that matter. It could have been a total disaster. Thank God Almighty for the steadfast ignorance of the average American.”
“Nobody,” I pointed out, “ever lost a dime underestimating it.”
“True,” he agreed. “And speaking of ignoramuses, what the hell is wrong with Justice Antonin Scalia, comparing Obamacare…”
“You mean,” I interjected, “the 2010 Affordable Care Act.”
“Uh, yeah, right,” he corrected himself sheepishly. “I tell you, I couldn’t believe it when our administrative assistant came into one of our meetings and played an audio recording of Scalia saying what he did during oral arguments at the Supreme Court. One of the men on the Council pounded the table so hard, he broke a bone in his hand! Another one had a heart attack, right there in his chair, and one of the women actually fainted! It was outrageous, what Scalia said! It made my blood boil! ‘Everybody has to buy food sooner or later. Therefore, everybody is in the market; therefore you can make people buy broccoli.’ What’s he doing, comparing the 2010 Affordable Care Act to broccoli? The markets for health insurance and healthy green vegetables have nothing in common but the word ‘health!’”
“Not that healthy,” I observed, “if one of your American Fruit and Vegetable Council members had a heart attack.”
“You’re being unfair to green vegetables,” Groenteboer protested. “That fellow was always smothering his broccoli in cheese, Béarnaise and Hollandaise sauce.”
“That’s about the only way,” I reminded him, “that most people can stand to eat it.”
“I, myself,” Groenteboer huffed indignantly, “happen to like the way broccoli tastes, just the way it is. I even eat it fresh and uncooked.”
“Without dipping it in anything?” I queried.
“Um, well, all right, yes,” he admitted, “I dip it in vinaigrette… or even the ranch dressing… sometimes.”
“’Sometimes?’” I echoed skeptically.
“Oh, all right,” Groenteboer conceded, “maybe broccoli does taste kind of bitter when you eat it plain. But you can always steam it – that takes the bite right out.”
“I like to toss the florets in Tuscan olive oil and fresh squeezed lemon juice with gray Celtic sea salt and a little bit of crushed peppercorn mélange,” I confided, “then roast them.”
“Okay, okay,” he nodded. “See? Just what I was saying – broccoli can taste good and stay healthy to eat without being covered up in mounds of melted Cheddar cheese or buried in some kind of fatty casserole or mixed into an egg, starch and butter-ladened quiche. Broccoli is good – and good for you. Not like Obamacare; nothing like it at all.”
“Not everybody,” I countered, “agrees with Justice Scalia that the 2010 Affordable Care Act is a bad thing. And besides, the question that the Supreme Court was considering when Scalia made that remark wasn’t whether the Act is good or bad, but rather whether the Commerce Clause of the Constitution gives Congress the power to pass a law with provisions requiring people to buy health insurance.”
“Okay,” Groenteboer groused, “so what’s that got to do with the federal government forcing people to buy broccoli?”
“Well,” I began, “the Solicitor General argued that health care is part of interstate commerce, and is therefore subject to regulation by Congress under the Commerce Clause and…”
“Damn it all, Tom,” Groenteboer interrupted, “broccoli is already part of interstate commerce, and it’s already regulated by laws Congress passed under the Commerce Clause, decades ago, and let me tell you, as far as the American Fruit and Vegetable Council is concerned, those regulations are a complete nuisance! So why the hell did Scalia have to drag broccoli into this?”
“Scalia,” I explained, “is a Constitutional Originalist.”
“What the [expletive] is that?” Groenteboer angrily demanded.
“Originalists,” I replied, “believe that interpretation of a written constitution or law should be solely based on what reasonable persons living at the time of its adoption would have declared the ordinary meaning of the text to be.”
“And how the hell,” Groenteboer demanded, “does Justice Scalia determine that?”
“He likes to sit down with a copy of the Constitution and an eighteenth century English dictionary and figure out exactly what the Founding Fathers meant when they wrote each Article.”
“But what about the parts of the Constitution that were written after the original document?” Groenteboer wondered aloud. “Like after the Civil War and when guys like William Howard Taft were President?”
“Justice Scalia,” I informed him, “prefers to use an eighteenth century English dictionary to interpret the entire United States Constitution. He feels that it’s more consistent to do it that way.”
“So what are you saying – that somewhere in Scalia’s eighteenth century English dictionary, there’s evidence that the Founding Fathers hated broccoli?” Groenteboer grumbled.
“Although broccoli was first cultivated by the ancient Etruscans,” I responded, “it remained primarily a component of Mediterranean cuisine until the late nineteenth century and didn’t become well known in the United States until after World War I. So the answer is, the Founding Fathers, with the possible exceptions of Thomas Jefferson and Benjamin Franklin, most likely had never even heard of broccoli, much less tasted it. And George Washington, not Jefferson, represented Virginia at the Constitutional Convention. Furthermore, there is no record of Franklin ever mentioning broccoli, either in Philadelphia in 1787 or anywhere else.”
“So,” Groenteboer reasoned, “an Originalist would have to conclude that, since it was essentially unknown to them at the time the Constitution was written, the Founding Fathers had no opinion on broccoli.”
“You’d think so,” I agreed, “but we can’t forget that there were also no electronic devices, no nuclear power plants, no synthetic organic chemicals, no automobiles, no aircraft and no Internet; and that health care consisted of diagnosing diseases for which there were no cures, only treatments consisting of prescriptions for opium, mercury, arsenic and various herbs like cannabis and witch hazel; plus the occasional amputation of injured or putrid limbs with knives and saws without the benefit of anesthesia. Nobody knew what bacteria and viruses were, so there weren’t any medicines to combat them, and doctors never even bothered washing their hands with water, much less soap. Consequently, to say that the Founding Fathers wouldn’t have had any concept of a health care system as we know it is the understatement of the millennium – in fact, they had no concept of what we today would call health care. They had about as much of an idea of penicillin, insulin, dialysis, titanium hip replacements, pacemakers, liver transplants, or cures for cancer as they had about riding a rocket to outer space. It would have been impossible for them to have written anything in the Constitution that explicitly pertains to any of those things. They couldn’t have meant, or intended to mean, anything about them.”
“Just like broccoli?” Groenteboer piped up hopefully. “Except for maybe Ben Franklin, of course?”
“Exactly,” I confirmed. “There’s nothing in the United States Constitution about broccoli or health care. There’s nothing in it about a right to privacy, either – just a prohibition against ‘unreasonable searches and seizures,’ whatever that means. It does, however, clearly state that, for purposes of enumerating the population for apportionment of the House of Representatives, slaves count as three-fifths of a person, and that’s the kind of clear, unambiguous eighteenth-century text Justice Scalia really likes. Because, you see, Justice Scalia thinks anyone who believes that interpretation of the Constitution should evolve along with changes in American history, technology and society is crazy.”
“He does?” Groenteboer’s jaw dropped.
“He’s said as much,” I affirmed.
“Okay then,” Groenteboer pondered, “say Congress did pass a law that requires everybody to buy broccoli or else pay a penalty on their income tax. And say somebody refuses to buy broccoli, and then refuses to pay the extra income tax penalty, and the case goes to the United States Supreme Court. How does Justice Scalia figure out what the Framers of the Constitution thought about how the Commerce Clause applies to broccoli when his eighteenth century English dictionary doesn’t even have the word ‘broccoli’ in it?”
“Well,” I supposed, “the Supreme Court can only rule on actual cases, which means that the Supreme Court would have to wait until somebody, let’s say a Mr. Poe, quits buying his broccoli, say during the first January after the law is passed, and the Commissioner of the IRS, a Ms. Dade, brings the case against him after he’s filed his income tax return sixteen months later in April of the following year. Then, since he’s a Supreme Court Justice, we can safely assume that, while Poe vs. Dade has made its ponderous and circuitous way through the federal court system, Justice Scalia has been obeying the law and buying broccoli for what we can reasonably conclude would be several years. So, here’s Mrs. Scalia, trying to figure out what to do with all this federally mandated broccoli for all that time, sneaking it into various dishes, much, we would presume, to the distinct irritation of Justice Scalia, because if there’s one thing George W. Bush has taught us, it’s that conservative, middle-aged Republican men simply cannot abide it when women try to make them eat broccoli. Therefore, it’s pretty certain that by the time the brief for Poe vs. Dade finally hits his desk, Justice Scalia would have had it up to the gills with stinking broccoli. The guy’s only human, after all, so it seems to me, actually, that he’d pounce on the fact that his eighteenth century English dictionary doesn’t say anything about broccoli, because that makes it just like everything which comprises twenty-first century health care – and the contemporary concept of insurance, for that matter.”
“So,” Groenteboer fretted, “if a word or concept doesn’t exist in Justice Scalia’s eighteenth century English dictionary, the United States Constitution doesn’t apply to it?”
“If the hermeneutic paradigm employed is Orginialism,” I asked, rhetorically, “how could the analysis possibly be otherwise?”
“Interesting,” Groenteboer murmured contemplatively. “So, does that mean, if a fruit or vegetable isn’t mentioned in Justice Scalia’s eighteenth century English dictionary, it can’t be regulated by the Commerce Clause?”
“That,” I advised, “is something you’d have to pursue with a Constitutional scholar.”
Suddenly galvanized by the implications, Groenteboer stood up abruptly, rejuvenated and resolute. “Right! And I intend to do exactly that. Know any good ones?”
“Definitely,” I told him, “there’s Elysia Solomon, Jesse Ruiz, Dan Johnson-Weinberger and Joe Khan.”
“You’re certain they’re top notch?” Groenteboer asked as he shook my hand.
“Of course,” I assured him, “they all studied Constitutional law with Professor Barack Obama.”